Marine convicted in adultery case sentenced

Woman said she was drunk and sexually assaulted

A military judge who convicted a Marine of “attempted adultery” after she reported she was too drunk to give her consent to sex sentenced her Thursday to a letter of reprimand and a $3,000 pay cut, the Marine Corps announced.

The woman, a staff sergeant stationed at Camp Pendleton who is married to a Marine chief warrant officer, was also found guilty Wednesday of obstruction of justice for denying the sexual encounter to investigators.

For the conviction involving the equivalent of misdemeanor charges, she faced a maximum possible punishment of 12 months in jail, reduction to the rank of private, loss of two-thirds pay for a year and a bad conduct discharge.

The woman’s husband continued to insist Thursday that she was a sexual assault victim, which is why her name is being withheld. “Now the healing can begin for our family and she can continue to serve honorably as she has for the past 17 years,” he said.

The unusual case comes as the military struggles with an epidemic of sexual assault, an extreme reluctance by victims to report it and a move to reconfigure the military justice system so that commanders can no longer dismiss convictions — as an Air Force general did recently in a decision that provoked widespread criticism.

A Pentagon health survey released this week found that roughly one in five military women have experienced unwanted sexual contact from another service member since joining the military. The Marine Corps had the highest rate among the services at nearly 30 percent.

The military is also waging a campaign against alcohol abuse, which is often a factor in sexual assault. But military prosecutors argued that the defendant’s intoxication and sexual assault defense was merely a “web of lies” spun to avoid punishment when she got caught cheating on her husband.

“By whatever means necessary, (she) was going to save her skin. When backed into a corner, she played the ultimate trump card by claiming sexual assault,” Maj. Doug Hatch said in closing arguments. This isn’t about sexual assault, “what this case is about is obstruction of justice and the integrity of a staff NCO.”

The case underscored challenges facing the Defense Department. The conviction may reinforce suspicion among the ranks of false sexual assault reports. An exoneration would have recast the defendant’s obstruction of the investigation as loathing to endure the scrutiny of a sexual assault inquiry, as the woman’s military lawyer argued.

The Defense Department estimates that more than 19,000 service members are sexually assaulted each year, but only 14 percent report the crime. Among civilian sexual assault victims, the reporting rate is an estimated 46 percent, according to the Justice Department.

In the military, “mostly it is out of shame and fear,” including the fear of retaliation, that keeps victims from speaking up, said Brian Purchia, spokesman for Protect Our Defenders. The organization is lobbying to remove the military chain of command from reporting, investigation and adjudication of sexual assault, partly because in about a quarter of incidents one of the victim’s bosses is the perpetrator.

“These victims are part of a failed system where predators are allowed to just be free. There are very, very few that are ever convicted of a crime and actually serve time and are kicked out of the military. It’s fraught with conflicts of interest, abuse of authority and no regard for the victim, throughout the process the commander influences.”

The husband

In the Camp Pendleton case, the woman’s husband of 17 years and father of their two children sparked the adultery investigation when he reported to her command his suspicion of an affair. After an early release from work followed by several hours of drinking, she had stayed at a hotel with another staff sergeant from her unit, Marine Aviation Logistics Squadron 39. Capping an hours-long argument that month, she told her husband she had been acting strangely because she had cheated on him.

About six weeks later, after two investigations into the alleged adultery and denials from the defendant that she had gone to the hotel, the commanding officer of the squadron stopped preparations for non-judicial punishment and moved to try the woman by special court martial. Both forms of punishment for adultery are rare.

When the squadron legal chief told her she would be facing criminal charges, the woman started crying and mentioned that she had wanted to tell her commander during non-judicial punishment proceedings that she had been too drunk to consent to sex, according to trial testimony.

The chief was required to report a potential case of sexual assault. A subsequent investigation cleared the single Marine she had sex with of wrongdoing. He testified that the sex was consensual, she did not appear incapacitated and he did not know she was married.

It is unclear why the command decided to initiate non-judicial punishment proceedings for adultery. The Staff Judge Advocate declined this week to release legal documents in the case other than the charge sheet, citing potential privacy concerns.

The 3rd Marine Aircraft Wing handled the adultery case this way to protect the integrity of the sexual assault response process for victims, a spokesman said.

During the trial that started Monday, the woman’s lawyer said she did not report sexual assault right away because she anticipated “a long drawn-out court process with no guarantee he would be punished,” said Capt. Rafiel Warfield. “No, she doesn’t report it. She tries to put down her head and deny the entire allegation … to prevent having to go through the trauma again and again.”

Too drunk to consent?

After extensive testimony about how much alcohol the defendant drank, the military judge, Lt. Col. Leon Francis, acquitted the woman of the adultery charge in favor of the lesser offense of attempted adultery. Francis questioned why she would go to the hotel if she did not intend to commit adultery.

“Perhaps she and her husband were arguing. … Going to a hotel room is not consent to have sex,” Warfield responded, adding that the Marine she was with that night testified that he expected sex at the hotel was possible, but not inevitable.

On Wednesday, the military’s chief toxicologist testified that the woman’s blood alcohol content may have been about 0.40 percent, enough to make an average person unconscious and potentially in a coma.

Half that much alcohol in the bloodstream can cause slurred speech, drowsiness, blacked out memories, staggering, “loss of emotional stability and poor judgment,” said Army Col. Timothy Lyons, chief forensic toxicologist for the Armed Forces Medical Examiner.

He based his calculation on information the judge provided him from the trial, including a bar receipt and testimony of Marines with her that night. That evidence indicated the 93-pound, 4-foot-10 woman drank two large glasses of beer, three Midori Sour cocktails and two glasses of red wine over five hours.

The legal limit to operate a vehicle in most jurisdictions is 0.08 percent.

However video footage of the woman stopping for wine on the way to the hotel showed her able to walk and talk and make the purchase without apparent difficulty.

Crime of adultery

It is almost unheard of for adultery to be tried in military court as a stand-alone offense and even non-judicial punishment for it is uncommon, according to Gary Solis, a former Camp Pendleton judge who teaches at Georgetown University. Usually it is an add-on offense to more serious charges such as drug use.

“As long as they come to work and do their job, the military has no business looking into their sexual life,” he said. “But when the husband comes to the commanding officer, he’s in a hard spot. He has to do something.”

Adultery remains a crime in the military justice system long after the civilian world “has come to its senses,” because military law is based on a code of justice formulated in 1951, Solis said. The Uniform Code of Military Justice also deems oral sex and sodomy "unnatural carnal copulation" on par with bestiality, long after the Supreme Court struck down the sodomy provision.

“It was a different world, and no one has taken it out,” despite the military's requests to Congress to scrap the adultery law, Solis said. “It’s not an issue of disrupting good order and discipline.”

The defendant waived her right to a jury of her peers and elected to be tried and sentenced by the judge. Now the convening authority in the case, a colonel in command of Marine Aircraft Group 39, could decide to dismiss the conviction or reduce the sentence.